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Ben & Jerry’s Hasn’t Cleaned Up Its Act, Consumer Group Claims

(Bloomberg) -- It’s summer in America, and that means action-packed movies, piles of hot dogs and plenty of ice cream. But according to a lawsuit filed Tuesday by a consumer food-advocacy group, if your choice of ice cream is Ben & Jerry’s, it may come with a swirl of pesticides.

With wacky flavors and a do-gooder reputation, the company was the second-largest ice cream brand in the U.S. last year, with $801 million in sales, according to Euromonitor. Ben & Jerry’s doesn’t just taste good, the company promises, it does good. “Values-led sourcing” means that some ingredients are Fair Trade and all are non-GMO, the ice cream maker pledges on its website; the most important one—milk—comes from “Caring Dairy” farms, it says. The website defines the term as including animal welfare monitoring and farmer and farm-worker standards.

The Organic Consumers Association alleges, however, that Ben & Jerry’s isn’t keeping its word. The consumer watchdog said in a complaint filed in District of Columbia Superior Court in Washington that the company and its parent, European food giant Unilever Plc, have engaged in deceptive marketing by misleading shoppers into thinking they’re buying an environmentally friendly treat. According to the lawsuit, the ice cream is made from milk sourced from the same kinds of farms as most other dairy products and the final product contains the pesticide glyphosate. (A “pesticide” is defined as any substance used to control certain forms of unwanted plant or animal life, such as weeds and insects.)

“Unilever,” according to the complaint, “is building on Ben & Jerry’s reputation as an environmentally responsible company to deceive consumers into believing that the products are made with humane and environmentally responsible practices.”

“Their advertising is clearly intended to create the perception that this is a company that cares deeply about animal welfare, the environment and climate change,” said Katherine Paul, associate director of the OCA, in an interview. “We felt it was important to expose them for what they’re actually doing to the environment.”

Ben & Jerry’s declined to comment on the lawsuit. However, in response to a news report on the presence of the pesticide, the company said last summer that it was working to improve its sourcing to avoid such substances appearing in its products.

“There’s a myth out there that Vermont is bucolic and natural … but the reality now in Vermont is that almost all dairy cows are in a lifetime of confinement.”

“There’s a myth out there that Vermont is bucolic and natural, and the cows are all on grass, but the reality now in Vermont is that almost all dairy cows are in a lifetime of confinement—they never see the light or put their hoofs on grass—and the farming relies extensively on pesticides,” said Michael Colby of Regeneration Vermont, an environmental nonprofit.

The dairy industry (including companies such as Ben & Jerry’s) funnels more than $2 billion into Vermont each year, but it comes at a steep environmental price, according to his group, which works with OCA to document such issues. “The water crisis in Vermont is at a staggering level now.”

Though the “Caring Dairy Standards” page of the Ben & Jerry’s website states that meeting the program’s basics is “required for all farmers,” the OCA lawsuit alleged that the ice cream maker’s milk comes from a cooperative in St. Albans City, Vermont; that less than 25 percent of that co-op’s suppliers (as of January 2017) met the Caring Dairy standards; and that the co-op doesn’t separate the milk according to whether it originated from a farm that adheres to Caring Dairy standards.

Last year, Ben & Jerry’s acknowledged that its sourcing practices weren’t perfect. “As we have been evaluating our current dairy supply chain, and while we have worked diligently over the past 7 years to improve farm practices, we fully acknowledge that it is not where we would want it to be,” the company said in a statement addressing the dairy industry’s range of deleterious effects. It said it was “actively exploring ways” to stop “operating in the same broken system.”

But the OCA takes issue with the brand’s continued use of environmentally friendly imagery. In its lawsuit, the group said that lab tests it commissioned show that some Ben & Jerry’s flavors, including favorites such as Phish Food and Chocolate Fudge Brownie, contain low levels of glyphosate, a widely used pesticide. Ben & Jerry’s has said it was “concerned, but not totally surprised” that the pesticide was there, and it committed to “no more ingredients using glyphosate-dried crops” and creating a new line made with 100 percent organic dairy.

The “goal is for Ben & Jerry’s to do the right thing.”

Colby said he has been lobbying Ben & Jerry’s for decades to change its sourcing practices, even taking them on drive-by tours of various Vermont dairy farms to show barrels of pesticide, manure pits, dilapidated migrant labor housing and green, foamy, cyanobacteria-infected water in Lake Carmi. He goes out of his way not to blame local farmers, though, arguing that they are forced to cut corners to keep afloat.

Nevertheless, OCA’s lawsuit faces an uphill battle, according to Brent Johnson, a class-action defense lawyer. At the center of the complaint is the argument that Ben & Jerry’s isn’t living up to its promises of environmental stewardship and humane animal husbandry. The problem, he said, is that these promises are nebulous.

“It’s unspecific, and that is probably what will cause the biggest problem for the plaintiff in this case,” said Johnson, a partner at the law firm Holland & Hart.

The presence of glyphosate, he added, doesn’t necessarily prove that Ben & Jerry’s isn’t environmentally responsible. “I think that’s a real stretch, based on the omnipresence [of the chemical] in our food supply chain,” he said.

The plaintiffs do have at least one important fact on their side, he said: “If it’s true that St. Albans’ mixes milk production, and some don’t qualify as a Caring Dairy under the standards articulated by Ben & Jerry’s, that’s to me the plaintiffs’ best case.”

Katherine Paul, of the OCA, said the “big picture goal is for Ben & Jerry’s to do the right thing.”

“Imagine if they took some money and instead of using it for misleading advertising, helped Vermont dairy farmers transition away from conventional farming,” she said. But “short of that,” she said, we want them to “stop misleading consumers.”